SZMZA v Minister for Immigration

[2008] FMCA 702

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMZA v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 702

MIGRATION – RRT decision – adjournment of hearing – applicant belatedly re‑served with earlier delegate’s decision – requires opportunity to take further advice – adjournment granted.

Migration Act 1958 (Cth), s.48B

Applicant: SZMZA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 471 of 2008

Judgment of: Smith FM

Hearing date: 21 May 2008

Delivered at: Sydney

Delivered on: 21 May 2008

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr S Free

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is adjourned for final hearing on 18 August 2008 at 10.15 am. 

2. The parties’ costs incurred by reason of the adjournment are reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 471 of 2008

SZMZA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in 2006, and applied for a protection visa on 8 June 2006.  The application was refused on 28 July 2006, and no application for review was lodged with the Refugee Review Tribunal. 

2. The applicant was taken into immigration detention on 17 October 2006 and was interviewed on 19 and 29 October 2006. He subsequently wrote a series of letters to the Minister for Immigration, asking for the exercise of personal discretions to allow him to make a second application for refugee status. Such a determination under s.48B of the Migration Act 1958 (Cth) was finally given on 2 November 2007.

3. The applicant was then interviewed again by a delegate, who refused the second protection visa application on 18 December 2007.  The applicant was assisted to make his application, and throughout the subsequent proceedings in the Refugee Review Tribunal, by a migration agent who is known to the Court to have extensive experience in this area. 

4. The Tribunal conducted a hearing and an extensive correspondence with the applicant, raising its concerns.  It wrote a lengthy decision affirming the delegate’s decision, which was handed down on 31 January 2008.  Throughout all this time the applicant was held in immigration detention. 

5. On 27 February 2008 he made his present application for judicial review of the Tribunal’s decision, and attended a first court date on 18 March 2008.  He was still in detention.  I gave directions, expediting a hearing which I set down for today.  The applicant was referred to legal advice under a free legal scheme funded by the Minister. 

6. Today, at the commencement of the hearing, it appeared that the applicant has recently been released from detention, and that the people who have been helping him while he was held in detention had been unable readily to locate him.  One such person is Ms Milne, who received a letter from the Department of Immigration dated 16 May 2008, as the applicant’s authorised recipient of correspondence. 

7. In effect, this letter re‑served the delegate’s 2006 decision refusing the applicant’s first application for a protection visa.  This possibly had the effect that the time allowed for the applicant to apply to the Tribunal for a review of that decision recommenced.  No explanation from the Department of Immigration appears in the letter sent to Ms Milne for the decision to re‑serve the 2006 decision, and it is completely speculative as to how this came about.  The Minister’s representatives today were unable to inform the Court.  The letter shows no awareness that the applicant is currently litigating the validity of a decision made on a second protection visa application. 

8. In these circumstances, Ms Milne, who has helpfully attended today to advise the Court about these events, suggests that an adjournment should be given to the applicant to allow him to get legal advice on whether he should bring a second application for a merits review by the Tribunal and, if so, whether he should proceed with his current application for judicial review of the decision made by the Tribunal in January 2008.  He has not been able to even start getting that advice, due to Ms Milne’s inability to contact him until recent times. 

9. I consider that the applicant should be given the opportunity to take that advice.  This will require him both to review his prospects in the present judicial review application – a matter on which he has already received some advice from the court appointed barrister.  He also needs to review his prospects in a second application to the Tribunal, and how they might be affected by his present proceeding in this Court and its possible outcomes. 

10. I shall therefore grant an adjournment of the hearing. 

11. In relation to the Minster’s costs of the adjournment, prima facie the adjournment appears attributable to failures of administration within the Department of Immigration. Without some explanation, it seems to me that the decision to re‑serve the 2006 delegate’s decision could, and should, have been made much earlier, and probably at the time when the Minister was previously considering an exercise of powers under s.48B. However, counsel for the Minister is not properly instructed to be able to address the Court in relation to that issue and its bearing on questions of costs, and I therefore propose to reserve the costs of today.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  2 June 2008